M and A v London Borough of Islington

The two claimants are children who are severely autistic. They live with their respective mothers in flats owned by the defendant. M has a younger brother, S, who is also severely autistic. Otherwise they are not connected, but their claims have been joined because on behalf of each it is said that the failure of the defendant to afford them a transfer to other accommodation is unlawful since where they at present live is unsafe for them in particular because all three children are drawn to windows and balconies and will try to jump out. The danger of this is all too obvious when they are at a level above the ground floor.

The claims were lodged in July 2014. Following refusal on the papers, permission was granted at an oral renewal hearing on 18 September 2014. Expedition was required and a hearing was to take place on 26 November 2014. As will become apparent, the main ground relied on on behalf of the claimant was that Section 27 of the Children Act 1989 applied so that the defendant was obliged to take action which it had not taken to re-house the claimants. In R(C) v. Hackney London Borough Council [2015] PTSR 1011 on November 7 2014 Turner J decided, having heard argument from Mr Wise, that s.27 did not apply. This claim was accordingly stayed pending a decision of the Court of Appeal on the claimants’ application for leave to appeal. Following refusal of leave to appeal by McCombe, LJ on 15 May 2015 the stay was lifted. Mr Wise has maintained the argument that s.27 does apply and that Turner J was wrong and has submitted that I should decline to follow his decision.

Before coming to the facts of the individual claimants’ circumstances, it would be convenient to deal with the argument centred on s.27 of the 1989 Act. It provides under the heading ‘Co-operation between authorities’ so far as material as follows:-

“(1)

Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority specifying the action in question.

(2)

An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

Section 17 is the material provision of the relevant part of the 1989 Act. This, so far as material, provides:-

“(1)

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need;….

by providing a range and level of services appropriate to those children’s needs….

(3)

Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare…...

(6)

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation…..”

Section 17(10) defines a child in need to include one who is disabled. Section 17(11) defines ‘disabled’ to include children such as the claimants.

The need to safeguard and protect the welfare of children in general is further set out in s.11 of the Children Act 2004. Section 11 applies to local authorities (s.11(1)(a)) and by s.11(2) it provides:-

“Each person and body to whom this section applies must make arrangements for ensuring that—

(a)

their functions are discharged having regard to the need to safeguard and promote the welfare of children; and

(b)

any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.”

Section 11(4) is important. It provides:-

“Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.”

The defendant is a unitary authority. All functions which a local authority can exercise are exercisable by it. But it has within it separate compartments so that various different functions will be carried out by different persons. The two compartments material for the purposes of this case are social services and housing. Section 7 of the Local Authority Social Services Act 1970 provides by s.7(1):-

“Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”

This is somewhat stronger than the requirement in s.11(4) to have regard to guidance by the Secretary of State.

In some areas of the country, different authorities deal with social services and with housing. Thus s.27 of the 1989 Act fulfils an obvious need if a service which the particular authority concerned with social services cannot provide but which can be provided by a different authority is required. Mr Wise submits that it can also apply to different departments within a unitary authority. Having regard to the purpose of s.27 which is to assist in safeguarding and protecting the welfare of children in need, it is, he submits, necessary to construe s.27 to give effect to that purpose. It is only if the reference in s.27(1) to ‘that other authority’ includes a separate department within a unitary authority that that purpose, he submits, can be achieved. Turner J decided that that would be to subject s.27 to a strained and wholly artificial interpretation.

Mr Wise has raised the same arguments which were rejected by Turner J and has relied on the same authorities. But he has submitted that there has been a subsequent decision of the Supreme Court, Nzolameso v. Westminster City Council [2015] PTSR 549 which assists his argument. He also relies on guidance from the Secretary of State which appears to indicate that s.27 does apply within unitary authorities. The natural meaning of the words in s.27 indicates that it is aimed at co-operation between different authorities when the authority which deals with social services and so the welfare of children in one does not have responsibility for dealing with other matters, in particular no doubt housing. It may be assumed that Parliament considered that unitary authorities would ensure that there was the necessary co-operation between the various departments so that there would be no need for a statutory requirement to achieve it. Thus in R v. TowerHamlets LBC ex p Byas (1992) 25 HLR 105 which concerned an application to require the Council’s social services department to make a s.27 request to its housing department, Hoffman LJ observed at p.107:-

“In my judgment, this application is perfectly hopeless. Section 27 of the Children Act 1989 enables a local authority to ask for the help of one of the other authorities mentioned in s.27(3). It seems to me quite unarguable that the requesting authority can itself be the authority to which the request is addressed. You cannot ask yourself for help.”

Byas was a refusal by the Court of leave and so is not a binding authority. But, as Turner J observed, it is due considerable respect.

Mr Wise has relied on in particular observations of Lord Nicholls in R(G) v. Barnet LBC [2004] 2 AC 208. The construction of s.27 was not argued in that case and Lord Nicholls’ observations about it were entirely obiter. He does indicate in paragraph 62, applying s.27, that a unitary authority’s social services department can request help from its housing department ‘as the local housing authority’ and the housing department must comply unless it would unduly prejudice the discharge of any of its functions. Byas was not cited. Lord Steyn was in general agreement with Lord Nicholls. Mr Wise submits that Lord Hope’s observations in paragraph 71 assist his argument. Lord Hope was simply making the point that in unitary authorities the statutory duties in relation to child care are separated from those relating to housing.

R(G) v. Southwark LBC [2009] 1 WLR 1299 concerned the councils’ obligation to provide accommodation for a child. Lady Hale gave the only reasoned opinion. At paragraph 33 she referred to s.27 of the 1989 Act and the guidance issued by the Secretary of State in May 2008 on the issue of co-operation between authorities. She stated:-

“Section 27 of the 1989 Act empowers a children’s authority to ask other authorities, including any local housing authority, for ‘help in the exercise of any of their functions’.”

Since Southwark is a unitary authority, her observations do seem to assume that s.27 can apply to such an authority. But Byas was not cited and it is not clear the extent to which (if at all) s.27 was raised in argument.

Nzolameso (supra) concerned the lawfulness of Westminster’s decision to house a single parent who was suffering from ill health and was homeless in Milton Keynes. An issue dealt with by the Supreme Court was the application of s.11 of the 2004 Children Act. It did not require that a child’s welfare should be the paramount or even a primary consideration, but it had to be properly taken into account (paragraph 22). But s.27 was not considered at all and I find nothing in the case which supports Mr Wise’s construction of s.27.

In March 2015 the Secretary of State issued updated guidance entitled ‘Working Together to Safeguard Children’. It was issued under a number of statutory provisions including s.7 of the Local Authority Social Services Act 1970 and s.11(4) of the Children Act 2004. It will be recalled that s.7 of the 1970 Act requires that the authority must act under such guidance and that s.11(4) imposes the lesser obligation to have regard to such guidance. In paragraph 68 of the guidance, it is said:-

“Where requested to do so by local authority children’s social care, professionals from other parts of the local authority such as housing and those in health organisations have a duty to co-operate under Section 27 of the Children Act 1989 by assisting the local authority in carrying out its children’s functions.”

There is a similar paragraph in guidance issued under the Children Act 1989 which in paragraph 428 states:-

“Health authorities, local authorities, local housing authorities and other social services departments have a duty to comply with a request from a children’s services department for help in the exercise of their functions [section 27]”

Mr Wise points out that where an Act requires that persons act on guidance, there must be very good reason not to follow it. But the guidance must comply with the law. Following Turner J’s decision, the law is that s.27 does not apply to unitary authorities. It follows that the indication that it does in the guidance is not in accordance with the law and it cannot be used as a ground for submitting that Turner J’s decision, now upheld by McCombe LJ, was wrong.

As I pointed out in argument, it seems to me that the attempt to overturn Turner J’s decision was entirely unnecessary. It is apparent that Parliament required by s.27 the degree of co-operation between authorities set out in it. While the guidance is poorly drafted, it can and should be read to require that the same degree of co-operation between departments in a unitary authority is given as would be required by s.27 between different authorities. Lord Nicholl’s observations in R(G) v. Barnet LBC (supra) went too far and unnecessarily applied s.27 in terms and, Lady Hale in R(G) v. Southwark LBC was, I fear, guilty of loose reasoning, but the effect of her observations is to make clear that within a unitary authority different departments must act in the same way as would be required if s.27 did apply.

I note that in R(C) v. Hackney LBC it was agreed between the parties that if s.27 did not apply the claim had to be dismissed. That was, I think, an unfortunate approach since s.27 was not needed to achieve the required result. As I have said, I am satisfied that the argument that s.27 must apply directly is a barren argument since in a unitary authority it follows Parliament’s will, the Secretary of State’s guidance and observations of Lord Nicholls and Lady Hale that the same approach as required by s.27 is applied. Mr Baker did not seek to argue that my approach was incorrect, his case being that the defendant’s system in operation as applied in the cases of each of the claimants did meet the s.27 test. Mr Wise did in the end recognise that my conclusion provided the claimants with all that they could have had if s.27 directly applied. I should of course add that I am entirely satisfied that Turner J’s construction of s.27 was correct. It follows that I do not need to deal with Mr Wise’s arguments based on human rights and Article 3 of the UN Convention on the Rights of the Child which he deployed to support his contention that s.27 applied. They are all unnecessary since I have decided that its requirements are to be applied indirectly.

The Housing Act 1996 in Part VI as amended sets out how local authorities must deal with the allocation of housing. Section 166A requires that every local housing authority in England must have a scheme in allocating housing. S.166A(3) so far as material deals with priorities in a scheme and provides:-

“As regard priorities, the scheme shall….be framed so as to secure that reasonable preference is given to - …….

(c)

people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

(d)

people who need to move on medical or welfare grounds (including any grounds relating to a disability)….

Subsection (14) provides:-

“A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”

The defendant’s scheme now applicable was set up in 2015. As is usual it applies a points scheme. Residents of the borough start with 100 points and receive an extra 5 each year. There are additional points awarded for various factors including medical and welfare needs and references from the Social Services department for children’s services. The maximum to be awarded for medical or welfare needs is 150 points and for children’s services 150 or even 200. The evidence before me showed that to obtain a three bedroom ground floor flat required an average of 288 points, although anyone bidding for such accommodation was said to have reasonable chance if he or she had over 200 points. But it is recognised that there are discretionary powers. The scheme on page 5 states:-

“The allocation schemes cannot cover every eventuality. In special cases with exceptional needs, the Service Director for Housing Needs and Services has discretionary power to award additional priority and approve offers of housing, taking into consideration all factors relevant to housing and social needs.”

Thus it is possible to prioritise individual applicants who have needs such as the claimants by granting additional points or by exercising discretion to make an offer of suitable housing. This will obviously depend on the seriousness of the needs coupled with the ability of the defendant to provide what would be suitable having regard to the availability of such accommodation, the needs of those who may be in a more serious condition and the obligations to provide housing overall.

I must now set out the material facts of each claimant’s case. As will become clear, each parent has real difficulties in looking after the claimants and, in M’s case, his brother S. Their autism is severe and the result is a continual need to ensure they do not do things which could harm themselves. But many of these difficulties will exist wherever they live and, as will become apparent, their claims are concerned with the alleged failure by the defendant to ensure that each family has a transfer to accommodation which will eliminate the particular danger that the children will jump off the balcony or out of a first floor window and so suffer serious injury or even death. The claimants’ solicitor’s concerns which to an extent lie behind these claims derive from her experience of having been instructed by the mother of an 8 year old who suffered from autism and lived on the eleventh floor of a block and who had no understanding of danger and loved climbing. Despite the dangers which were drawn to the attention of the housing department of the defendant by a social worker, an occupational therapist and a consultant paediatrician, a transfer was not achieved and in 2012 the child fell to her death. Mr Baker assured me that lessons had been learnt from that, but, as will be seen, the claimants submit that in these cases there is a danger of falling and, albeit a fall from the first floor might not be fatal, it could obviously cause serious injury. Thus the welfare of the children is not, it is submitted, safeguarded or promoted.

M is now 9 and his brother S is 8 years old. They live with their mother in a two bedroom maisonette over ground and first floors. Each child has speech and language difficulties and challenging behaviour, S being worse than his brother. Both lack a sense of danger. S in particular needs close supervision and becomes aggressive if told to cease an activity or if he does not get what he wants. Their mother has had her own health problems which include diabetes and the activity of her thyroid gland. She also suffers from learning difficulties. Since the bedrooms are on the first floor, the children cannot be left to play there since there is the risk that they will try to get out of the window and fall to the ground thus sustaining injury or worse. Their mother has mobility problems and so has difficulty in getting up and down stairs and with any need to restrain either child if he has become too aggressive or is doing something which may harm him. Each child attends a special school called The Bridge. In March 2013 the defendant’s children’s services made an assessment of the family’s needs. In relation to housing, this is said:-

“The family live in a local authority 2 bedroom maisonette which is paid for via Housing Benefit. The housing currently meets the needs of the family although Ms R has expressed concerns about the safety of the property due to S climbing on furniture and trying to pull the TV off the wall however these are issues to do with his behaviour rather than the property. Ms R has said that she would like a garden for the children as it can be very difficult to take the children out to the local park and it would be good to have outdoor space that the children can access. Although this would be preferable it is unlikely Ms R will gather enough points to get a new flat in Islington. Ms R has also said that she would like to move closer to her sister in West London and would like to get a housing transfer. Although I note that this is something that has also been mentioned in most recent core assessment which was completed in March, 2010 and this has not been progressed with the Housing Department.

The children’s bedroom is suitable to meet the needs of the children and has suitable bedroom furniture and bedding. The property has been clean and tidy during my visits and I have seen a cleaner at the property that has been provided by the ILDP team. There are child safety gates between the kitchen and the living room and the living room and the hallway so prevent the children, mainly S from leaving the room and putting themselves in danger. This is a suitable short term measure to ensure that the children are safe at the property however as the children grow it will become less effective.”

In June 2013, Rebecca Webb, a social worker attached to the defendant’s Disabled Children’s team, wrote a letter to the Housing Options Transfer team in which she drew attention to the problem and stated:-

“Ms R. has also stated that she would benefit from a single floor property so that it is easier for the boys to use their bedroom as it is not safe for them to play upstairs unsupervised because of the stairs. Both boys lack a sense of danger and would not be able to climb the stairs on their own as they would not be able to do this safely. It would then give both boys more space to play and some of their own space to play and therefore increasing their safety. It would be helpful to review the number of points this family has and to ensure that it does accurately represent the family’s complex situation.”

On 3 July 2013 the claimants’ solicitor wrote to the defendant’s legal department what was stated to be a pre-action protocol letter because it was said there was in her experience a lack of proper communication between the social services and housing departments and there had been an unlawful failure to provide sufficient points to achieve the necessary transfer. By 25 July 2013 Ms. R. had been awarded 150 points, 30 of which resulted from medical needs. This was insufficient to produce a realistic chance of obtaining a ground floor accommodation which should have access to an enclosed garden. In October 2013 Emma Stevens, an occupational therapist employed by the Whittington Health Trust and based at The Bridge School, presented to the defendants a form headed “Support with re-housing for children with non-physical disabilities”. Although not employed by the defendant, Ms Stevens worked in partnership with the defendant. ‘S’ in particular demonstrated little or no awareness of his own safety, both were physically active and often sought to climb. There were concerns that they would try to get out of windows on the first floor. These had restrictors on them but no locks. She said they would benefit from an outside play area and both, because in particular of the risk of falling from windows, needed constant supervision indoors and outdoors. She regarded the current accommodation to be unsuitable because:-

“● both boys require their own bedroom due to difficulties managing poor sleep with both boys.

● There are no internal doors to the lounge and kitchen

● There are no keys to lock the windows in the property

● The bolt on the front door needs to have a padlock to limit the ability of the boys to open the door as they grow.”

For future accommodation she recommended a three bedroom ground floor property which could have internal stairs provided that there was a door which could ensure that mother could supervise both on the same floor. An enclosed garden space would be beneficial and there should be locks fitted to all internal and external doors and windows.

Following the lodging of this claim on 11 July 2014, on 21 October 2014 the defendant sent to the claimant’s solicitors a letter for Ms. R setting out the defendant’s position. It had been approved by Ms Stevens, whose assessment was recorded as follows:-

“1.

Although a housing transfer to alternative accommodation would be beneficial, it is not consider (sic) to be an urgent or high need.

2.

Your family circumstances, in particular, the needs and risk of harm to M and S, were and are sufficiently met by the risk management plan (to meet the immediate risks) and by housing officers determining the appropriate number of priority points for your housing transfer application in accordance with the Authority’s housing allocation scheme.”

It went on to say that the allocated social worker had been considering and would continue to consider with colleagues in the social services department whether social services should request any assistance from the housing department. But social services’ conclusion was that they agreed with Ms Stevens’ assessment because, so long as their mother followed the risk management plan, there was no immediate safety risk to the children. Some adaptations to the property had been made and the priority points had been increased to 226. Thus no formal reference to housing was needed for extra points or for discretion to make a direct offer of housing. It was said that Ms R now had enough points to make an effective bid. Reference was made to the pressures of housing of the type requested from other applicants who had greater needs and the scarcity of such accommodation.

The situation has not since changed. Ms R has made bids, but due to her difficulties has had problems in making them without assistance. She has had one offer which she initially accepted, but subsequently rejected because, albeit ground floor, it had no appropriate garden or outside space.

A is now 10. She cannot speak and cannot manage stairs without significant assistance. She lives with her mother, Ms J, and two siblings on the first floor of a block of flats. There is no garden. Ms J suffers from rheumatoid arthritis which makes it difficult for her to get A up and down stairs. A is fascinated by and will drink any liquid which is a real problem in the block in question which is infested with drug addicts who urinate there. The accommodation is over two floors. A is very active and has often tried to escape for example through open windows. Thus there is a need to keep windows shut which has exacerbated a problem with condensation and mould which particularly affects one of her siblings who is asthmatic. Access to the flat is by a walkway and there is concern that A will succeed in jumping off and so injuring herself. She is because of her condition unable to recognise or react to danger.

On 23 July 2013 an occupational therapist based at The Bridge submitted a support for re-housing children with non-physical disabilities. This set out the reasons why the current property was unsuitable, which I have already set out, and recommended that there should be provided a three to four bedroom ground floor or first floor property with enclosed communal balcony and lift and enclosed garden or safe place for A to play. This was followed by a letter from the claimants’ solicitor requesting a proper assessment. The response stated that Ms J had 100 points and the assessment was that she was adequately housed, but that there would be a re-assessment on receipt of medical evidence. A medical report from the defendant’s medical advisor dealt only with Ms J’s arthritis which was said to be mild. A report on the conditions in the flat obtained by the claimants’ solicitor in December 2013 concluded that mould, condensation, disrepair and a lack of insulation resulted in an exposure to risk of serious harm, including wider safety issues.

In response to a letter before action which included a request for use of s.27, the defendant responded on 28 April 2014 saying a relevant assessment of the children would be undertaken. It continued:-

“This authority will discharge the relevant duty to the children and conduct a s.17 Children Act assessment….”

It continued that it would be “non sequitor” to be able lawfully to provide “a view as to whether or not its power under s.27 Children Act 1989 may be invoked”. It concluded:-

“Once the assessment of the children is completed, my client will then take a view as to whether or not using its s.27 Children Act powers would go any way to assisting it with discharging its duties under the Children Act 1989”.

This was written before Turner J’s decision, but its significance was in the recognition by the defendant that it must approach its obligations in the same way as s.27 would require. That is what it has, submits Mr Baker, done. That I will consider when considering its policy and the putting of it into practice in relation to these claimants.

On 3 June 2014 a draft assessment of A was produced by a member of the defendant’s Disabled Children’s Team, Simone Mackenzie. She felt that Ms J was over protective of A, but did not need any extra support. There should in her view be an assessment by an Occupational Therapist to consider locks to the windows and a net to the balcony. She said that, while the risk to A from the windows and balcony was significantly low, the mould and mildew could spread and be a particular problem for the asthmatic brother. An OT assessment was needed. A OT assessment was obtained from Emma Stevens on 11 June 2014. She noted that A showed very limited awareness of safety and that she had, according to Ms J, tried to climb out of windows and would use anything to climb on to reach keys. She also noted the mould and the unhygienic state of the public part of the block. She regarded the premises as unsuitable for the reasons to which I have already referred. She recorded a risk management plan which she had agreed with Ms J which provided:-

“ ● Mum to keep windows opened with window restrictors or locked at all times

● Parent to lock front door and keep key with her at all times

● A to hold parent’s hand when walking on communal balcony and be closely supervised

● OT to refer to SSOT for the above adaptations around making the internal stairs safer and to look at the communal balcony with view to making this safer”.

Her recommendations for future accommodation were that A would benefit from ground floor access or first floor with enclosed communal balcony, enclosed garden or play space, locks and window restrictors.

Ms Mackenzie’s draft was attacked by the solicitors, in particular in that it seemed to be suggesting that Ms J had said that A did not attempt to climb. This Ms J denies. Ms Mackenzie has lodged a statement in which she observed that Ms J was told that the risk to A was not significant as the communal balcony was on the first floor, the windows had restrictors and A did not climb as much as other children. She stated:-

“….the risk of fatality is not as imminent as other families where they live in higher blocks with internal windows which are unsafe. Therefore she will not be on the housing priority list to move.”

Later in her statement she says (paragraph 10):-

“The balcony is on the first floor and there is no evidence to suggest that a fall would be any more fatal than to any other person who was to fall”.

Whatever is meant to be conveyed by this sentence, risk of injury should surely be a matter of real concern since whether or not death ensues it is hardly to safeguard a child’s welfare to expose that child to a risk of injury, which could from a fall from a first floor level result in broken bones or even death. Ms Mackenzie also records her conversation with A’s teacher at The Bridge that A did not present with challenging behaviours and was not a young person who jumped and climbed.

The record of what is called a TAC meeting, namely a meeting attended by those directly concerned with A from social services (Simone Mackenzie), housing (Lesley Bugg, housing manager), Emma Stevens, A’s teacher at The Bridge, a family counsellor and Ms J, held on 26 June 2014 records as follows:-

“●Currently have 100 points

●Have had window restrictors in place. Has damp within the property. This has been treated though still being worked on. A does not sleep in her own room because of this issue. Action: Lesley to follow up with repairs about any outstanding issues about damp etc.

●Emma has emailed to SSOT to look at raising the banister to limit risk of A climbing or potentially falling, also to look at whether feasible to make the open balcony any safer.

●Mum reports that A is trying to climb the communal balcony often and throwing things over. Discussion about Mum registering for the house swap scheme. Action: Lesley to ask mobility team to support Mum with registering with home swap. Wanda said she is able to support if needed. Lesley to review the parks allocation.

●Mum is following up with repairs a lock for the front door. Action: Emma to contact repairs to get them to look at front door.

●Discussed that A is currently not on the RED list because despite the issues they have at home being very difficult and that there is obviously a risk it is felt that she is not at immediate risk because she does not climb as much as other children. The balcony is on the 1^st floor. Action: Lesley to review to assess whether she is entitled to any more welfare points.”

I shall explain the significance of the RED list in due course.

On 21 October 2014 a similar letter to that sent on the same day to M’s mother was addressed to Ms J. This recorded Emma Stevens’ agreement to the letter and her assessment that the need for transfer was not urgent or high and that the agreed risk management plan would suffice to meet the risks together with housing officers determining the appropriate level of points. The scarcity of social housing and the higher levels of need of other applicants was referred to. The points awarded had been increased to 184 on 16 September 2014. As in M’s case, that essentially remains the position.

Mr Baker contends that the system in place for deciding on housing accommodation where there are risks to children’s safety and more generally to the safety and well-being of the family concerned is in accordance with the law. It requires account to be taken of the need to safeguard and promote the welfare of children. If social services consider that there is a need for transfer because there is a danger to children, it will make clear to housing what the position is and housing will be expected to take any necessary action. Mr Wise does not accept that the system does meet the requirements of the law. There has been, he submits, a failure to produce a plan of action to meet the assessed needs of the claimants. They are children in need within the meaning of s.17 of the 1998 Act and so there is, according to the Working Together guidance, a requirement that “a multi-agency child in need plan should be developed which sets out which agencies will provide which services to the child and family”. These claims concern the alleged failure to provide suitable accommodation to avoid the risks to the claimants’ welfare. The plan required by the guidance is one which deals with all services which will be required to ensure so far as possible that children who are in need are provided with all material services so that they can live in safety and their welfare is safeguarded and promoted. No doubt accommodation which is safe is a requirement. But there is in my view no reason why the means whereby that safety is so far as reasonably possible ensured should not be dealt with outside a general plan for provision of services. Provided that there is a proper means of dealing with the issue, the absence of a general plan which covers it as well is not in my view material. The guidance states:-

“The plan should set out clear measurable outcomes for the child and expectations for the parents”.

It seems to me that it is not inappropriate to deal with the question of whether a transfer is needed to a particular sort of accommodation because of safety issues separately. If the system does properly protect children in need where there are real dangers arising unless alternative accommodation is provided, the absence of a general plan is not unlawful. I do not know whether plans for the claimants which deal with the services needed as indicated in the guidance do or do not exist. The concern is whether the system in operation to deal with accommodation to meet needs is satisfactory and whether it has been applied properly in these cases.

Mr Rodney Gray is the Team Manager of the Disabled Children’s team (DCT) within the defendant. The DCT deals with all services required by children in need and Mr Gray has provided what he has called an outline of how the DCT ‘provides a service to families and works in partnership with relevant agencies regarding non-physically disabled children’s housing needs’. When a disabled child is referred to the DCT, whether by a parent or other professional, a s.17 assessment can follow. If a social worker identifies a housing need, Mr Gray said in his first statement dated 22 October 2014 (this was before Turner J’s decision in R(C)):-

“….the parent is sign-posted to self refer to the local housing service or the social worker advocates on behalf of the family via making a referral to the housing service via telephone, email or via letter. Advocacy tasks completed by the social worker with housing officers can be interpreted as being undertaken under functions such as section 27 of the Children Act 1989 or similar or related provisions, to ensure that a family is supported to resolve any unmet housing need”.

The need in any case may be met by the family with assistance from services within the community or a social worker. But if the need cannot be resolved, Mr Gray continues:-

“If…..the home environment is in some respect considered unsuitable for the disabled child then a referral is made by the social worker to the Occupational Therapist (OT)….via email or telephone. After the referral is screened the OT visits the disabled child and their family at the home address to complete a Non-Physical Disability OT assessment. This OT assessment identifies whether their current home environment meets the child’s disability and care needs and identifies any immediate safety risks to the child.”

If any immediate safety risks are identified, the OT will first agree a risk management plan with the parent which will be recorded. If the OT believes that the child is at an immediate safety risk or a risk of fatality as a result of unpreventable accidental injury a reference will be made to the head of paediatric therapy and specialist housing within 24 hours. This is in accordance with the Policy and Practice Guidance for Staff, Housing Needs and Non-Physically Disabled Children, issued by the defendant. The guidance states:-

“If the child is assessed at risk of harm due to the family’s current accommodation steps must be taken to reduce the risk of harm”.

If there is believed to be a high risk of serious harm or injury and the OT considers that only a move to another property will mitigate that risk, the Head of Service must be notified within 24 hours. What is called a Team Around the Child (TAC) meeting must be arranged, which includes both housing and social services representatives. TAC meetings are required at regular intervals even if the risk does not require a transfer as soon as possible, where any serious risk of harm exists.

The risk levels are set out in the guidance under a Code of Red, Amber or Green, hence RAG. The levels are described thus:-

“Red: Immediate Safety. Risk of severe injury or fatality, i.e. climbing over balcony, highly active child in high rise 2^nd floor above storey level. MUST contact Head of Service for advice.

Amber: Urgent safety needs: that requires safety management plans until the family have been re-housed i.e. severe risk of harm to child OR new referral for re-housing report.

Green: Re-housing needs: due to overcrowding, child needs own space.”

I gather Green has now been removed as unnecessary.

The guidance requires that there be quarterly meetings attended by OTs, representatives from the social services and housing and the head of paediatric therapy and specialist housing services. These meetings are required to ensure that all relevant information from whatever service is taken into account to ensure that any children at risk of environmental injury are identified and that all necessary measures are taken to protect them. If the risk level is assessed to be red, there will be more likelihood of a direct offer of suitable accommodation and that has been the result in 9 cases. Otherwise there will be an increase in points to ensure priority in bidding. No direct offers have so far resulted for those whose risk levels are amber.

Mr Wise submits that the system in force does not equate to that which s.27 would require. It is I think important to bear in mind the obligation on the requested authority which is to comply with a request for help if it is “compatible with their own statutory or other duties and objectives and does not wrongly prejudice the discharge of any of these functions.” In R v. Northavon DC ex p. Smith [1994] 2AC 402 the House of Lords considered what the correct approach should be. Lord Templeman’s observations on the manner s.27 should be applied were agreed with by the other members of the committee. On page 410 between letters D and H, Lord Templeman said:-

“The provisions of section 27 of the Children Act of 1989 which, as Mr Lester observed, required the housing authority to co-operate with the social services authority, imposed on the housing authority a duty to ascertain whether the housing authority could, without unduly prejudicing the discharge of their functions, provide a solution or co-operate in securing a solution to the problems of the Smith family to the extent necessary to prevent the children from suffering from lack of accommodation.

Following such consideration the result might have been that no solution was obtainable with the reasonable co-operation of the housing authority. There might have been no available accommodation which the housing authority could provide without unduly prejudicing the discharge of any of their functions. There might have been no solution which did not impose on the housing authority a financial burden which they considered unduly prejudicial to the discharge of their functions. Mr Smith might have been an unacceptable tenant. Failing any acceptable solution, it would have been the duty of the social services authority to protect the children of Mr Smith by providing financial assistance towards the accommodation of the family or by exercising the other powers available to the social services authority under the Children Act 1989.

In the event the housing authority were able, without in their view unduly prejudicing the discharge of any of their functions, to co-operate in arrangements whereby the children of Mr Smith did not suffer from lack of accommodation. The social services authority are responsible for children and the housing authority are responsible for housing. The two authorities must co-operate. Judicial review is not the way to obtain co-operation. The court cannot decide what form co-operation should take. Both forms of authority have difficult tasks which are of great importance and for which they may feel their resources are not wholly adequate. The authorities must together do the best they can.”

His concluding remarks on the undesirability of using judicial review to obtain the necessary co-operation are to be noted. And it is equally important to bear in mind that s.27 does not require that the functions of the requesting or the requested authority are changed. The same approach will be material in a unitary authority where one department is requested to assist the other.

The defendant has lodged two statements by Karen Lucas, the Head of Housing Needs in the defendant. The first statement was made in October 2014 and the second in November 2014. She deals with the pressure on social housing in the borough. Although the precise figures may have changed somewhat the overall picture remains essentially the same. As at 1 April 2014 there were 35,000 units of social housing in the borough, but the housing register contained 17,800 households together with some 973 in temporary accommodation. There is a very limited number of ground floor properties with 3 or more bedrooms and even fewer with an enclosed garden. There were 212 applicants who had been assessed to need a ground floor property because of mobility issues, difficulties in managing stairs and health or safety risks.

The witness produces a copy of the exceptional housing needs policy which applies to children in need. It provides that any professional employed in specialist services (which will cover children such as the claimant) may make a referral under the policy and by doing so will be seeking to prioritise the housing needs for the benefit of a child or young person. It is only to be used if (so far as material to these claims) there is a significant risk of a child needing to be looked after and no suitable housing is available and an ordinary transfer application would be likely to lead to delay which is considered detrimental to a child’s welfare. Such a referral can be dealt with by what is known as ‘the Director’s Scheme’ which enables the Director of Children’s Services to make up to 15 nominations for priority housing to the Housing Department. Acceptance by the housing department will result in an initial award of 150 points and the case will be kept under regular review.

Apart from the Director’s Scheme, there is the RAG system. If the TAC meeting which will follow if the OT’s assessment of risk recommends that there is a need for alternative accommodation, there will be a placement on the Risk Register at red or amber. A Housing Needs meeting attended by officers from Children Services, Housing and OT is held monthly and at such meeting the OT will raise an amber case that needs to be reviewed. In paragraph 10 of her statement, the witness states:-

“In order to promote co-operative working between Housing and Children Services, I have arranged training in safeguarding for my officers involved in the allocation process. Officers in my division understand that Children services can request assistance from Housing and that they are required to support Children Services in their safeguarding duties. I have recently implemented a monthly drop-in surgery for social workers from Children Services to come and seek advice on the housing allocation scheme and housing options for their clients. Cases on the risk register are kept under review at TAC meetings and at the monthly Housing Needs meetings; Children Services can request further assistance from Housing at these meetings as necessary.”

Mr Wise criticises the system in that the OT who assesses the risk is not an employee of the defendant. There is, he has submitted, no children services input into whether a child goes on the risk register whether red or amber. This he submits is a fatal flaw since if there is to be an equivalent arrangement to that provided for by s.27, the request for assistance must come from the social services department and so social workers must be able to instigate it. It is clear that the system does involve all relevant professionals. There is no reason to doubt that an OT is the best person to assess risk. It is apparent from the evidence of Ms Lucas that it is open to anyone in Children Services to raise any concerns about risk in existing housing. The fact that the OT and the Head of Paediatric Therapy and Specialist Nursing are not employed by the defendant is not of any significance since they work together with social workers.

While no family on the amber level of risk has been made a direct offer of alternative accommodation, Ms Lucas has said that there is no bar in principle to that happening if a meeting identified such a case.

I have no doubt that the system in operation, which owes much to the death of the child in 2012 when a new approach was recognised to be needed, is such as does comply with the indirect application of s.27.

Mr Wise submits that its application to these claimants has not achieved the result which their circumstances required, namely a transfer to suitable accommodation. In A’s case, the mould in the flat and sometimes disgusting state of the public part of the building needed to be taken into account since they showed a risk to the health of the asthmatic brother and to A in her tendency to try to drink any liquid. He also complains that there had been a failure to disclose the contents of any Housing Needs meeting. This failure arose from concerns by the defendant that it would be disproportionate and so unnecessary to make that disclosure. I have not thought it necessary to go into this because I have no reason to doubt that the meetings did, as the defendant’s witnesses have indicated, consider the claimants’ cases and review their situation.

I can well understand and have great sympathy with the plight of the claimants and their families. 2½ years have passed since it was accepted that the accommodation they at present occupy means, in the words of the amber risk level, that there are urgent safety needs because of risk of injury to the claimants. As the children get older and stronger, no doubt the risks will become greater. But the view has been maintained that the risk management arrangements with the claimants’ mothers mean that the priority need is not such as warrants a direct offer or further points in either case. I am concerned at the length of time that has elapsed and in A’s case, that the level of points is not such as to mean that a bid for the desired accommodation is likely to succeed. But I cannot intervene unless persuaded that, having regard to my conclusion that the system is proper and lawful, its implementation in either case is unlawful. That must mean that it fails the Wednesbury test. As Lord Templeman indicated in the Northavon case, judicial review is not a satisfactory means of dealing with this situation and in any event I do not consider that the continuing absence of transfer is irrational.

Mr Wise has submitted that the absence of transfer shows that the system in place is not working. I can understand that it may seem so from the point of view of the claimants’ mothers who are suffering from the unsuitable accommodation and have real fears for their children’s safety and are concerned that they will be less able to apply the necessary safeguards as the children get older. Those concerns will, I am sure, be considered carefully by those responsible in the defendant and it should be recognised that lapse of time in itself can exacerbate the situation and perhaps require greater priority.

After I had drafted this judgment, I received what was described as “Claimants’ post-hearing note”. Unfortunately, it was not then served on the defendant’s representatives. In it, Mr Wise sought to expand on the argument which I have dealt with in paragraph 31 above. When eventually the defendant’s representatives received the note, they reasonably asked for time to reply. The arguments set out in the notes were not based on any new material or authorities which were not available at the hearing and I deprecate the way in which the claimants’ representatives have behaved. But since it is important that my decision is based on consideration of all material matters, I have taken the further representations into account.

These claims concern the safety of the claimants in the accommodation they at present occupy and the need for them to be transferred to safe accommodation. Thus what is material is the defendant’s approach to that particular problem which arises, namely how their safety is to be ensured. The guidance relied on by Mr Wise is only relevant to the issue of safe accommodation; the plan required covers many other matters. Thus his argument is, as I have said in paragraph 31, not material. What I have to decide is whether the system in force and its application to these claimants is lawful. Thus the authorities which have been produced in the supplementary notes are not in my view of any assistance in the context of these claims. But what is clear is that the guidance focuses on outcomes and states that there will be many different assessments that may need to be made at different stages and to deal with different situations. Suffice to say that, as I have set out in this judgment, I am satisfied that the system to deal with the safety of the claimants is satisfactory and that its application to each is lawful.

For the reasons I have set out, I must in the circumstances dismiss these claims.